Women's Rights & the Climate Crisis

Women are significantly underrepresented in federal and international discussions about climate change. Notably, statistical analyses have shown that, even though it has reduced over time, significant gender disparity remains common in UN and other climate negotiations. The increasing awareness of women’s unique vulnerability to climate change worldwide has not been reflected by increased representation in climate change decision-making.  

Women’s underrepresentation creates a lack of collective autonomy that prevents women from participating in decision-making processes that will impact their lives in major ways. It also relegates women’s issues and the work of women’s groups to localized rather than global forums. Because of the global nature of climate change and because of nations’ economic interdependence due to globalization, national governments are extremely important actors in decision-making on climate change. However, non-state actors such as NGOs and charities that focus on women's climate change concerns can also be instrumental in influencing international climate discussion in a feminist way.

A cap-and-trade program is an emissions control policy that involves the government setting a firm limit on pollution. This maximum amount of pollution is then distributed amongst companies so that each is given a specific emissions allowance. If a company emits less than their maximum allowance, it can sell the remaining allowance to other companies. Cap-and-trade programs aim to encourage businesses to find effective emission-reducing measures both by allowing them to trade remaining allowances and by reducing the maximum cap over time. However, many environmental justice groups, such as the Sierra Club, have opposed the expansion of cap-and-trade programs because they believe that such programs do not do enough to limit pollution and allow the greatest polluters to simply purchase larger allowances. On the other hand, some scholars have also argued that carefully designed cap-and-trade programs, when combined with other initiatives such as subsidies for renewable energy projects, can be both environmentally and economically effective. 

Although Bill S-5 is a federal bill and thus cannot create constitutionally-protected rights, the establishment of a federal right to a healthy environment would be a powerful step forward for climate activism in Canada. Firstly, it would standardize environmental rights across Canada, even in provinces that have been comparatively resistant to climate mitigation work. Secondly, it would allow legal and legislative discussions of climate change to move past simple cost-benefit analyses and toward a human rights discourse that acknowledges climate change’s many individual and community impacts.  

All rights are balanced against other rights, concerns, and priorities. The exact method of balancing is often left to courts to decide, as in the case of many Charter rights. Scholars have a variety of ideas about what a right to a healthy environment could mean in Canada and how it could be balanced against other existing rights. Although this right would be granted only to humans in Canada, it would necessarily include the protection of ecosystems and some other species. If a federal right to a healthy environment is recognized, climate activists could advocate for an expansive interpretation to ensure a robust protection of this right. While the minimum scope of the right would protect only what is absolutely necessary to preserve adequate supplies and human safety, an ideal environmental rights programme would provide much greater protections and work to ensure that biological and cultural support systems do not deteriorate to a minimal survival level. A rights-based approach to environmental law could also increase the ability of affected citizens to be involved in decision-making processes, rather than leaving the government as the final judge and protector of the environment.  

The term environmental racism was first used by the civil rights activist Benjamin Chavis in 1982. Chavis defined environmental racism as “the deliberate targeting of ethnic and minority communities for exposure to toxic and hazardous waste sites and facilities, coupled with the systematic exclusion of minorities in environmental policy making, enforcement, and remediation.” The phrase has also been used more generally to describe the disproportionate burdens placed on racialized and minority communities by environmental decision-making.  

In Canada, racialized communities and Indigenous people are regularly faced with higher levels of environmental risk than white people. This increased risk can oftentimes be explicit and deliberate, as in the case of oil sands fields that regularly endanger Indigenous and Métis communities through exposure to toxic chemicals. In other cases, the increased risk is unintentional but unaddressed, as in the case of increases in gender-based violence towards Indigenous women at resource extraction work sites. Environmental racism can also come in less obvious forms, such as a lack of access to adequate health care services exacerbating the increased health risks caused by climate change. A federally funded report into environmental racism across Canada, as suggested by the federal bill discussed above, would provide valuable information on the exact kinds of environmental racism that are currently playing out in Canada. 

Because the meat industry has one of the highest rates of occupational injury and exploits the most marginalized workers such as women, people of color, and immigrants, holding the Canadian government accountable for the routine human rights violation conducted in animal exploitation industries is a project ripe for feminist and climate-conscious law reform efforts. 

The raising and slaughter of non-human animals for food has devastating impacts on climate change, pandemics, and deforestation, yet these impacts have most been ignored by Canadian governments. Divesting subsidies from this industry and implementing plans to help farmers transition to plant-based food production could be invaluable in addressing the climate crisis. Click here to read a letter by animal and environmental organizations urging the federal government to take action on these issues.  

One particularly interesting piece of climate litigation is the Supreme Court’s 2021 reference  regarding the Greenhouse Gas Pollution Pricing Act. A reference occurs when a government body refers a legal question to the court; in this case, the provincial governments of Saskatchewan, Alberta and Ontario asked their provincial appellate courts whether the federal government had the jurisdictional power to create the Act, which created minimum fuel charges for carbon-based fuel and pricing mechanisms for industrial greenhouse gas emissions. The provinces felt that this infringed on their jurisdictional powers under s.92 of the Constitution Act, 1867. The question reached the Supreme Court of Canada on appeal.  

When a case is of particular importance, interested stakeholders will often want to share their concerns by intervening in said case. If the Court accepts their application to be intervenors, they can share their view of the potential impacts of the case. Because the Greenhouse Gas Reference had huge implications for the future of environmental law in Canada, there were many intervenors in the reference.  

This includes the National Association of Women and the Law and Friends of the Earth, who intervened jointly to provide a feminist perspective on climate change and argue that the issue of climate change is of sufficient national concern and presents a severe enough emergency threat to Canada to justify finding the legislation constitutional. Other organizations such as the David Suzuki Foundation and the Canadian Labour Congress also intervened, alongside Indigenous leaders such as the Athabasca Chipewyan First Nation. Interventions are an important way to ensure minority concerns are heard in court, as well as an opportunity for coalition building among advocacy groups. Unfortunately, the Supreme Court did not adopt NAWL’s feminist approach to the issue, but it did ultimately decide that the issue of climate change was of sufficient national concern to justify granting federal jurisdiction.  

Click here to watch NAWL and Friends of the Earth's intervention (intervention is at 2:31:30-2:36:30).

There are several limitations to climate change litigation. Generally, courts focus on answering questions of law, rather than questions of policy. While this does not mean that courts can never weigh in on politically controversial questions, courts will find issues to be “non-justiciable” if there is no question of law that they can answer and enforce. Because climate change is such a political issue, this can often create difficulties for parties attempting to litigate climate-related matters in the courts.  

Another issue is the question of scientific certainty. Courts often rely on experts to advise them on scientific questions such as whether a particular chemical should be classified as toxic or a pollutant. While scientific backing is certainly important for environmental analyses, complete deference to scientific certainty betrays the fundamental work of Courts, who often have to make decisions in uncertain circumstances. In fact, the precautionary principle of environmental work states that a policy-based decision should be made even where a substance has not been proven beyond scientific doubt to be toxic. Environmental analyses have also historically ignored the lived experiences of marginalized communities, such as Indigenous peoples, who are directly affected by toxic substances, as well as the impact of pollutants on non-human animals.  

Climate litigation can have international implications. Canada is home to many transnational corporations whose resource extraction projects take place around the world, often in developing countries. These corporations are the primary actors perpetuating environmental damage—in addition to human rights violations that directly affect women, such as gender-based violence around resource extraction work camps—, yet there is a great deal of uncertainty around litigating and enforcing judgements against them. Although the damage is being done overseas, much of the decision-making and policy creation is being done in these corporations’ head offices in Canada. Legal claims are increasingly being launched in courts of the home states of transnational corporations, including Canada, by victims of environmental damage against the corporation. However, concerns about sovereignty and jurisdiction can prevent these claims from moving forwards. For example, it can be extremely difficult to enforce judgements against parties that do not operate in the jurisdiction where a court made the decision, particularly if the party is a powerful transnational corporation hosted by an overseas country. As a host state, Canada has an important role to play in ensuring that its corporate entities meet minimum environmental standards both at home and abroad. To do otherwise would be to continue perpetuating climate injustice and historical patterns of colonialism and exploitation, whereby the Global North benefits while the Global South suffers the consequences of resource extraction and other environmentally damaging practices.  

As climate change has become an increasingly pressing concern, particularly for vulnerable populations such as youths and indigenous peoples, more and more parties have tried to use the legal system to directly hold the government responsible for its duties and climate commitments. Several groups have tried to sue the government of Canada for failing to preserve their equality rights under s.15 of the Canadian Charter of Rights and Freedoms by allowing climate change to continue and impact their ways of life. These cases illustrate the increasing concerns of individuals and communities about climate change and their attempts to directly force government action through the judicial system.  

Interested law reformers can follow along with the below cases to see how advocates can use legal principles to articulate climate-change related claims against the government:

Mathur et al v. Ontario:  Seven young people, backed by the organization Ecojustice, are suing the Ontario government for violating their Charter rights to life, equality, and security of the person. They argue that their rights are violated by the Cap and Trade Cancellation Act, which repeals previous climate-related legislation and weakens Ontario’s climate targets. While the government filed a motion to strike the case in 2020, the courts have allowed the case to proceed to a full hearing, a historic win for climate litigation in Canada. The hearing before the Ontario Superior Court took place in September 2022. Click here to follow the evolution of the case. 

La Rose et al. v. Canada: La Rose involved a lawsuit by Canadian youths against the Canadian government for its contribution to and inaction against climate change. They argued that children and youth are uniquely vulnerable to the impacts of climate change and thus are impacted unequally by the deficiency of environmental laws. The plaintiffs also believed that the government’s failure to address the existential threat of climate change infringed upon their section 7 rights to life, liberty, and security of the person. The case did not go forward because, in 2020, the Federal Court concluded that the claims were not justiciable and/or disclosed no reasonable cause of action.  

ENvironnement JEUnesse v. Canada: The non-profit organization ENvironnement JEUnesse tried to bring a class action against the Canadian government in the Superior Court of Québec on behalf of Québec citizens aged 35 and under. They wanted the Court to declare that the Canadian government had failed its obligations to protect young people under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms. Their application for authorization to institute a class action was rejected by the Superior Court. The Québec Court of Appeal dismissed the appeal and, in 2022, the Supreme Court denied leave to appeal.  

Misdzi Yikh v. Canada (also known as Lho’imggin et al. v. Canada): This is a legal challenge from members of the Wet’suwet’en indigenous groups against the Canadian government’s approach to climate change. They allege that Canada has contravened its international obligations to fight climate change, including its obligations under the 2015 Paris Agreement. The plaintiffs state that they have experienced serious detrimental effects from global warming on their territories and that Canada’s historically poor treatment of indigenous groups has exacerbated the impacts of the climate crisis on their communities. The Federal Court concluded that the claim was not justiciable. As of September 2022, the plaintiffs, who are appealing the decision before the Federal Court of Appeal, are waiting for a hearing date. Click here to monitor the evolution of the case. 

As we can see, procedural hurdles remain an important obstacle to climate litigation in Canada, although the Mathur case offers hope that courts will become increasingly open to consider climate justice issues as justiciable – that is, as proper matters to be decided by courts based on legal principles.